Citation Nr: 23009487 Decision Date: 02/14/23 Archive Date: 02/14/23 DOCKET NO. 12-27 676A DATE: February 14, 2023 ORDER Service connection for a right shoulder with nerve damage disability is denied. FINDING OF FACT The Veteran's right shoulder with nerve damage disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a right shoulder with nerve damage disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1976 through March 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A videoconference hearing was held before the undersigned Veterans Law Judge in June 2018. A transcript is of record. In February 2019, the Board remanded this case for additional development. Entitlement to service connection for right shoulder with nerve damage disability The Veteran contends his right shoulder with nerve damage disability is a chronic condition which began with an injury in basic training. See VA Form 9, October 2012. At the June 2018 Board hearing, the Veteran also testified that his right shoulder disability was a result of cumulative damage sustained during active duty and that he continues to experience pain as a result. See Hearing Transcript, June 2018. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The record reflects that the Veteran has current right shoulder diagnoses of AC joint osteoarthritis and rim rent tear or partial-thickness rotator cuff tear. See Private Medical Treatment Record, October 2010; VA Examination, December 2019. Thus, the first element of service connection, a current disability, is met. Service treatment records (STRs) indicate that the Veteran sought treatment for right shoulder and neck pain. Those records reflect that the Veteran was treated for acute trapezius right side in April 1976 and complained of cervical spine pain in the neck radiating to his right arm in June 1976. He was later treated in for right shoulder muscle spasm in June 1977 and pain in the right side of his neck and right shoulder in November 1977. Thus, the second element service connection, in-service incurrence or aggravation of a disease or injury, is met. However, the evidence of record persuasively weighs against finding the third element of service connection, a causal relationship between the Veteran's current right shoulder diagnoses of osteoarthritis and rim rent tear or partial-thickness rotator cuff tear and the right shoulder injuries during service. Pursuant to the February 2019 remand, the Veteran was afforded a VA examination in December 2019. The December 2019 VA examiner opined that the Veteran's right shoulder disability was less likely than not incurred in or caused by an in-service injury, event, or disease, including cumulative damage that began with an injury in basic training. The rationale was the Veteran's prior right shoulder injuries and conditions during service were unrelated to the Veteran's rotator cuff tear, AC arthritis, or degenerative disk disease shown on the October 2010 MRI more than 30 years after the Veteran's separation from service. The December 2019 VA examiner stated that the Veteran's shoulder complaints during service were due to muscle pain not cervical disk degenerative disease. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges that the Veteran believes that his current shoulder diagnoses are related to his shoulder injuries while in service. However, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the December 2019 VA examiner's findings. Subsequently, service connection for a right shoulder with nerve damage disability cannot be granted on a direct basis. Service connection may also be granted on a presumptive basis. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the evidence of record persuasively weighs against finding that the Veteran's shoulder injury manifested to a compensable degree within a presumptive period or was noted in service with continuity of symptomology. STRs show that despite the treatment the Veteran received in 1976 and 1977 related to the right shoulder, there were no additional complaints following and by the time of his February 1979 service separation examination, a clinical evaluation of the upper extremities was normal. Post service, as was noted above, private treatment records show the Veteran was not diagnosed with AC joint osteoarthritis in his right shoulder until October 2010, decades after his separation from service and decades outside of the applicable presumptive period. The December 2019 VA examiner also concluded that the Veteran's rotator cuff tear and AC joint arthritis were less likely than not incurred in or caused by the claimed in-service injury because the right shoulder injury and complaints noted during service were different conditions and of different etiologies than were shown on the October 2010 MRI, namely the in-service injuries were due to muscle pain not cervical disk degenerative disease. As was discussed above, the examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges that the Veteran's statements that his right shoulder pain began during service and progressively became worse. However, while the Veteran is competent to report experiencing symptoms of right shoulder pain in service and consistently since service, the Board finds his reports of continuity of symptomatology not credible. The Veteran's reports are internally inconsistent with his February 1979 Expiration Time of Service (ETS) Medical Examination in which his upper extremities (strength and range of motion) were noted to be normal. The Veteran testified that he has seen many doctors over the years who believe that his right shoulder condition is the result of his prior injury. See Hearing Transcript June 2018. However, the record does not contain medical records reflecting such treatment or a statement opining that etiology nexus. Notably, at the June 2018 hearing, the undersigned discussed the matter of obtaining a private medical opinion with the Veteran; however, he indicated he would not be able to do so. Subsequently, the Board gives more probative weight to competent medical evidence of record, which concluded that the Veteran's current right shoulder disability is not related to his in-service shoulder injuries or conditions. Accordingly, as the evidence persuasively weighs against the grant of service connection for a right shoulder disability on a direct or presumptive basis, it is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107 (b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Therefore, service connection for a right shoulder with nerve damage disability is denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Coburn The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.